Supreme Court justices just can’t move about like they did in the good ol' days
A generation or more ago, life was more carefree for U.S. Supreme Court justices.
“I joined the court in 2010, and it was an entirely different world then,” Justice Elena Kagan last month told a U.S. Senate Appropriations Subcommittee weighing the high court’s request for an increase in security funding. “I just walked out on the street. I had no security with me at any time. I drove back and forth to work by myself.”
She noted that members of the Supreme Court police force would protect her when she had a speaking engagement, “But honestly, none of us particularly thought about [personal security] at that time.”
Just a few years earlier, then-Chief Justice William H. Rehnquist, who by virtue of his position was the only justice chauffeured to the Supreme Court at that time, could still be seen leaving the building to take a walk around the neighborhood. Rehnquist, who died in office in 2005, defied the advice of court personnel, who knew of threats to the chief justice that reportedly included a female stalker.
Then-Justice Antonin Scalia, who served from 1986 until his death in 2016, enjoyed going to restaurants, the opera and elsewhere.
“When I was a law clerk, Justice Scalia did not have protection all the time,” Justice Amy Coney Barrett, who worked for Scalia in that role in the 1998-1999 term, told a U.S. House of Representatives Appropriations Subcommittee on July 14.
Christopher Scalia, one of nine children of the justice and his wife, Maureen, noted in an article in the National Review earlier this week, on the 40th anniversary of his father’s nomination and confirmation, that “for much of his time on the court, our home address and phone number were listed in the phone book.”
Scalia told the ABA Journal that while his father usually had a security detail when he traveled, he drove himself to work from the family home in the Virginia suburbs. (The justice was known to drive fast, and many friends told of their white-knuckle rides with him behind the wheel.)
“He really enjoyed driving, so the restrictions today’s justices are subject to would have frustrated him,” the younger Scalia told the Journal.
Cabinet-level security details sought
Those restrictions include personal security details for each justice, around-the-clock residential protection, and being transported almost anywhere they go in armored SUVs.
“Now, the threats are constant, and they’re always there,” Barrett told the House panel. “It’s necessary now, for protection and daily activities, to have a security detail.”
In 2022, when the draft opinion was leaked in Dobbs v. Jackson Women’s Health Organization, which would overrule Roe v. Wade and eliminate a federal constitutional right to abortion, the justices suddenly faced greater threats.
Image from YouTube.
Related article from ABAJournal.com: Judges Under Fire: Now more than ever, judges are the targets of attacks that largely result from their case rulings
Those included protests outside some justices’ homes and an attempt to assassinate Justice Brett M. Kavanaugh at his home in Maryland. But Kagan, in her joint appearance with Barrett before the separate Senate and House Appropriations panels, made clear that the high court began rethinking its security procedures a few years before then.
When Scalia died in his sleep in 2016, while on a hunting trip in West Texas, U.S. marshals were some three hours away. Scalia had dismissed his detail because the hunting lodge was remote and because he was among friends.
Kagan said the circumstances surrounding Scalia’s death prompted some members of Congress who were reviewing personal safety levels of senior federal officials suggested to the justices that their level of protection was inadequate.
“They said, kind of like, ‘We think you’re crazy, that you have less security than the director of the Office of Personnel Management does. And we think you have to do better,” Kagan said.
In 2018, the Supreme Court began contracting with the Chertoff Group, a private security company led by Michael Chertoff, a former secretary for the U.S. Department of Homeland Security, which has consulted with the court on personal security, risk management during the COVID-19 pandemic, and assistance with the investigation of the Dobbs leak by the court’s marshal. (The leaker was not identified, but the court did tighten some of its operating procedures.)
The Supreme Court’s heightened security measures in recent years include transporting the justices in armored SUVs. Justice Samuel Alito, in a 2023 interview with the opinion section of the Wall Street Journal, said he was now “driven around in basically a tank, and I’m not really supposed to go anyplace by myself without the tank and my members of the police force.”
Not your ‘normal Yukon or Suburban SUV’
Kagan and Barrett testified before the appropriations panels about the court’s $228 million budget request for fiscal year 2027, which among other things would add positions to boost the size of each justice’s personal security detail.
Each justice is assigned from four to eight Supreme Court police officers in their security detail, Barrett told the House panel, and the court is seeking to eventually increase that to as many as 12.
“Frankly, one reason for our longer-term plan to increase the size of our details to come closer to Cabinet-level officials is burnout and exhaustion,” she said. “A detail of four to eight people, when they have to monitor you around the clock, … it’s just a lot of hours.”
The Supreme Court’s police force has comparable pay levels for the much-larger U.S. Capitol Police, which protects Congress and its environs.
“This is a tough time to hire police officers,” Kagan said. “It’s a challenging recruitment environment. … You’re competing with a lot of entities for the same top qualified people. Notwithstanding that, we’ve managed to do pretty well.”
One reason for that is the court is offering a $60,000 hiring bonus for those with dignitary protection experience, paying out $25,000 after training, another $20,000 after one year of service, and then $15,000 after two years. (A bonus of $50,000 is offered to those without dignitary experience.)
“This bonus makes us stand out from almost every other agency,” a Supreme Court police officer said in a virtual recruitment session hosted earlier this year and first disclosed by Politico.
The officer noted that the Supreme Court Police Department has recently recruited officers from the New York City Police Department, from the U.S. military and other federal law enforcement agencies including the U.S. Mint Police and the police of the Smithsonian Institution’s National Zoo in Washington, D.C.
Another officer, a special agent with the high court’s dignitary protection unit who serves on personal details for the justices, noted that good driving skills are necessary because the armored vehicles now shepherding members of the court weigh about 8,000 pounds to 10,000 pounds each.
“They do drive a little bit differently than your normal Yukon or Suburban SUV, so it can be a little bit challenging,” the special agent said.
Closed doors at top of ‘processional progress toward justice’
One item in the Supreme Court’s budget request that got only brief attention during the appropriations sessions was $6.5 million to design of a new visitors’ entrance to the Supreme Court building.
“I think we don’t know exactly what it would look like, but we are concerned about people coming into the building right now before they’ve been checked,” Kagan said during the House hearing, meaning for weapons and other dangerous items.
The high court’s checkpoints are right inside the building’s doors, as well as a secondary screening before anyone enters the courtroom.
Some members of Congress suggested such a new facility would be like a smaller version of the U.S. Capitol Visitor Center, the massive underground facility adjacent to the Capitol building, which opened in 2008 to serve a screening purpose, as well as offer exhibits for tourists and new offices and hearing rooms.
There was little detail offered about the new Supreme Court visitor entrance, such as where it would be built or when it might open.
For many years, visitors to the court entered the building for oral arguments after ascending the marble steps to its main doors. But in 2010, the justices decided for security reasons to close that front entrance. The doors sometimes open to allow spectators to exit after oral arguments.
The decision was not unanimous. Then-Justice Stephen Breyer and then-Justice Ruth Bader Ginsburg dissented, with Breyer issuing an opinion styled like one for an actual case.
“I think the change is unfortunate, and I write in the hope that the public will one day in the future be able to enter the court’s Great Hall after passing under the famous words ‘Equal Justice Under Law,’” Breyer wrote.
He cited architect Cass Gilbert’s design of the court building and its cascade of steps as symbolizing, in Gilbert’s words, a “processional progress toward justice.”
Breyer said he remained “hopeful that sometime in the future, technological advances, a congressional appropriation or the dissipation of the current security risks will enable us to restore the Supreme Court’s main entrance as a symbol of dignified openness and meaningful access to equal justice under law.”
No such restoration has happened, and in the current security environment surrounding the Supreme Court, one seems quite unlikely to ever happen.
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